from the Iowa District Court for Story County, Timothy J.
defendant appeals his conviction for possession with intent
to deliver raising evidentiary issues and claims of
ineffective assistance of counsel.
Christopher A. Clausen of Clausen Law Office, Ames, for
J. Miller, Attorney General, and Sheryl A. Soich, Assistant
Attorney General, for appellee.
Considered by Doyle, P.J., McDonald, J., and Scott, S.J.
McCann appeals his conviction for possession of a controlled
substance-methamphetamine-with intent to deliver, as a second
or subsequent offender. See Iowa Code §§
124.401(1)(c)(6), .411, .413 (2016). He raises a number of
claims on appeal including: (1) the court erred in overruling
his objection to testimony he believed constituted
speculation; (2) the court erred in permitting an officer to
comment on his refusal to answer questions during his
interrogation; (3) the court erred in permitting the trial to
go forward in his absence; and (4) the evidence was
insufficient to support his conviction. Because we find the
evidence was sufficient and no error at law occurred, we
affirm McCann's conviction.
Background Facts and Proceedings.
attempting to effectuate civil service of process, Story City
Police Officer Dustin Demarest smelled marijuana emanating
from a trailer. When the occupant of the trailer, Kyle
Borton, opened the door, the smell intensified. Officer
Demarest later obtained a search warrant and returned to the
trailer the following day. At that time, Borton and his
girlfriend were present in the trailer, along with McCann,
who owned the trailer, and McCann's girlfriend. When
police entered the trailer, Borton's girlfriend fled from
the living room to the bathroom. McCann was located in the
bathroom standing over the toilet, and his girlfriend was
standing in the bathroom by the vanity.
the search of the trailer, officers located drug
paraphernalia in the bedroom along with McCann's
belongings. Shortly after the search began, McCann asked to
use the toilet. Officers first searched the bathroom and
located baggies containing methamphetamine in the toilet
bowl. McCann was charged with possession with intent to
case proceeded to a jury trial in December 2016, and the jury
returned a guilty verdict. After denying the posttrial
motions, the district court sentenced McCann to ten years in
prison with a one-third mandatory minimum term. The court,
however, decided not to enhance the sentence under section
124.411. McCann appeals.
Scope and Standard of Review.
review the district court's evidentiary rulings regarding
the admission of opinion testimony for an abuse of
discretion. State v. Kinsel, 545 N.W.2d 885, 889
(Iowa Ct. App. 1996) ("[A] manifest abuse of discretion
must be found before we will interfere with a trial
court's ruling on the admissibility of opinion
testimony."). We review de novo McCann's claims that
implicate his constitutional rights to the effective
assistance of counsel and the right to be present for trial.
See Nguyen v. State, 707 N.W.2d 317, 323 (Iowa 2005)
(noting standard of review for claims of ineffective
assistance of counsel); State v. Hendren, 311 N.W.2d
61, 62 (Iowa 1981) (noting the right to be present for trial
is a constitutional right and we review de novo the facts to
determine whether the defendant's absence from trial is
voluntary). Finally, we review for correction of errors at
law McCann's challenge to the sufficiency of the
evidence. See State v. Ortiz, 905 N.W.2d 174, 179
first claims the court should not have permitted Officer
Demarest to testify regarding McCann's knowledge of the
other drugs found in the trailer. He asserts such information
was outside Officer Demarest's knowledge because the
officer had no way to look inside his mind. He asserts his
attorney's "speculation" objection should have
the redirect examination of Officer Demarest, the prosecutor
Q. You stated just previously that the main reason that you
felt the defendant was in possession of the drugs is because
of his proximity to the toilet. Anything else that led you to
believe that these were the defendant's drugs?
A. Well, all of the paraphernalia and all of the other stuff
that I found in the bedroom. All of the spent needles and
spoons and cotton swabs.
Q. You said that the others in your opinion knew about the
A. (No audible response was given by the witness.)
Q. Is that in your opinion?
A. Yes, that's my opinion.
Q. So is it fair to say that if there were other drugs found,
that the defendant would have known about ...